Marx and Engels famously wrote in The German Ideology that «hundreds of earlier writers» (earlier, that is, than Max Stirner) agreed that «right originated from force» — i.e., from violence.
Anyone surveying the last 350 years of the history of jurisprudence may be excused for agreeing with them. It has been a history of monstrous heavings and shakings, where the law has been taken up and wielded as a tool for all kinds of delirious and utopian schemes. The common thread has been the demolition of the political-juridical principles of the prior order, which have been torn down, gutted, and redefined one by one. The justification for this razing of our juridical bastions has generally been connected to a claim that those old structures were offensive to the «rights of man». A claim about rights — a claim of justice — is thus at the heart of Modernity. But it is a claim of a perverted, defaced justice. «If the essence of “modern” culture is voluntarism (which is the intimate secret of rationalism)», wrote Cornelio Fabro, «one should not be astonished if the truth is then identified with action and right with force … The crisis of the world is a crisis of rights, in that it is first and foremost a crisis of their foundation, that is, of principles».1
The crisis is indeed at the foundation, at the point that is common to all conceptions and theories of law. None has been left untouched by the modern revolution. While many terms could be used to name this crisis, one that covers it as well as any other is legal positivism, the absolutely foundational claim (synthesized in the quote from Marx and Engels above), that all right and law are in the last analysis a product only of historical conditions, manifested in man-made conventions and acts of the human will. Or, as Blessed Pius IX described it, positivism is the claim that «right consists in the material fact». On this view, a jurist faced with a juridical question, with a problem of justice, needs only to consult the legal enactments established by those conventions and acts of will in order to find the solution. The whole work of jurisprudence thereby becomes the work of establishing the formal validity and content of those enactments.
The correlative negative claim of the legal positivist is that there is no properly juridical standard by which the bare fact of the human will and its enactments may be judged. That is, because all law and right are reduced to those enactments, the jurist is fundamentally incapable of interrogating their justice, to ask whether they themselves may be unjust, and thus defective as law. In the positivist conception there is simply no basis outside the human will that could provide the standards for such a judgment, and one is forced to conclude, with Thomas Hobbes, that auctoritas non veritas facit legem — power, not truth, makes the law. The positivist is chained to the view that there is no rational (objective, eternal) principle of right — there is, as Marx, Engels, and Fabro put it, only «force». The natural law, with its claims that the roots of jurisprudence are in the order of reason, is impossible — worse, it is absurd, a category mistake. More perversely, the positivist ends up seeing the natural law as a thinly-veiled ideology whose purpose is to deceive and influence the human will when it goes about making those enactments.
There are numerous flavors of positivist legal theory and a great number of refutations of them have been made. Still, as the great Thomist Carlos Cardona noted, «we must insist, against legal positivism, that despite its dramatic failures, it lives on in some lazy minds». Indeed, it seems almost impossible to kill. Like the hydra, when one variant is quashed new ones spring to life. The contemporary schools of legal positivism seem to cover the whole ideological spectrum, from Hans Kelsen and Norberto Bobbio to H.L.A. Hart and Antonin Scalia and their followers.
Take the terms of many debates in American jurisprudence. They generally oscillate between two mostly positivistic poles: progressive moralism and conservative originalism. In the mainstream one can only choose between the revolutionary positivism of the progressive, who denies substantively the normative claims of the natural law in the name of the liberation of the individual will, and the academic, genteel positivism of the originalist, who denies methodologically the normative claims of the natural law in the name of preserving the will of semi-mythical lawgivers. The U.S. Supreme Court’s decision in Bostock v. Clayton County has revealed a late fruit of this brambled garden: progressive originalism, the method of the conservative, now perfected at the service of the progressive’s ends.
Consider, by contrast, the dictum of St. Thomas Aquinas that «just as the written law does not give force to the natural right, so neither can it diminish or annul its force, because neither can man’s will change nature» (ST, IIª-IIae, q. 60, a. 5, ad 1). The ideological ascendancy of legal positivism has meant that the world in which this Thomistic principle could be heard as part of a legal argument is gone. At best, it is read as part of the «history of ideas», an interesting but harmless eccentricity of the ancients, irrelevant to the doctrine or practice of law. There is no «there» there for our contemporaries when it comes to the natural law’s claim to be real law. They have been entirely cut off from the epistemological road that might take them to it.
And how could it not be so? The work of the positivistic upheaval has been advancing for centuries, as Marx and Engels’s reference to «hundreds of earlier writers» confirms. But Jurisprudence is a subaltern discipline, downstream from theology, metaphysics, and politics. Thus, when these principles are removed or modified, law itself is changed structurally as a science and a practice. And as it turns out, the first thing that the modern legal theorists removed or modified was precisely the theological cornerstone on which the old juridical system was built (as Grotius liked to put it: etsi Deus non daretur, let us think as if God did not exist), leaving us, as St. John XXIII wrote, with a social and legal system «without God».2 A society built on such metaphysical emptiness can only pretend at civilization: «take away this [divine] basis, and with it all moral law falls, and there is no remedy left to stop the gradual but inevitable destruction of peoples, families, the State, civilization itself». The a-theistic society can ultimately only have recourse to «force», or, as Cardona put it, to «the physics of weapons and concentration camps or psychiatric hospitals».
More importantly for our purposes, our society is epistemologically cut off from the kinds of reasons that would make a metaphysically grounded legal system even comprehensible. By now the moderns’ work of intellectual demolition is almost complete. The lawyers — not to mention the laymen — who have been raised in this world have simply no understanding of the natural law as law, as the basis of an actually possible, workable legal system. The fundamental conceptual spaces necessary for this view to exist and be tenable are simply gone. Hence the lazy critic’s charge of nostalgia, utopianism, or unreality against common-good, natural-law jurisprudence.3
What the testimony of the past teaches, however, is that the pre-positivistic, natural-law order was a true juridical order. It is known to history as the ius commune, the common law of Christendom, and was a remarkably stable order that sustained and protected the growth of civilization for over a thousand years. It was based on a few, key doctrines about the nature of law and right that connected the legal order with the theological and metaphysical principles that structure all society, nature, and the cosmos itself. At its heart was a radical claim of truth, and it viewed the law as one of the principal teachers of that truth, a guide to human happiness in the service of the common good of social peace. It was for this purpose that lawful rulers were called to rule and persons were called to obey.
This order’s normative claims (grouped for now under the admittedly somewhat generic label of «natural law»), are usually studied today in one of two modes. First, as philosophical arguments, engaging chapters in the history of ideas. Among conservatives, they tend to serve as rhetorical crutches, high ideals, or omega points against which one can critique the current system. Second, as antiquarian curiosities, bygone artifacts of a long-lost age that in some people elicit a worthy nostalgia. Neither of these modes, though they may be very good as far as they go, amounts to a properly juridical appraisal, and it is not surprising that they have had virtually no practical effect on the development of our current legal systems.
In the posts that will follow this one (at an unspecified periodicity, for whatever is worth doing is worth doing badly), I will not indulge in another excursion of either character. I trust that our readers already know very well where to look for such worthy studies. Rather, in the spirit that animates this site, I propose to follow the method of what is properly called the History of Law (Historia del Derecho, histoire du droit, Rechtsgeschichte, storia del diritto). As traditionally practiced (at least in civil law jurisdictions), the history of law is methodologically a historical discipline, but substantively and morally a legal one.4 The canons, principles, and methods with which the History of Law proceeds are shared with other historical disciplines, since its work consists chiefly in the careful analysis of old texts. But as part of a curriculum for the formation of lawyers, it is intended to serve the attainment of the science of Jurisprudence, a practical science ordered to a practical end: the just action or ruling. Thus, the History of Law is concerned with understanding past juridical orders qua juridical, as functioning legal systems, the study of which illustrates and illuminates actual legal principles and arguments and, further, explains contemporary law’s sources and structure.5
In subsequent posts, I would like to contemplate the grand edifice of the ius commune, or a few aspects of it, in its true nature as a juridical order, focusing on the principles, methods, and modes of argument with which Christian society established a truly functioning, proper legal system based on the natural and divine laws. Since this cannot be done fully (perhaps at all) in less than a multi-volume work, I think I will limit myself for now to discussing two points (though these might change or expand as my reading or inclination shifts). The first is a general overview of the legal foundation of the ius commune: the Roman and the canon laws. It will build on other posts we’ve already published here at Ius & Iustitium. The second is more particularized and will take a look at the old Spanish legal institute of the contrafuero, which illustrates well the kind of methodological principle by which the ius commune preserved its ordered subordination to the common good. As the title of this series indicates, I can only suggest some «notes» about these things. Much more could be said about them and of many others still that I do not plan to discuss, but I hope that what follows may illuminate the ways in which a jurisprudence of the common good, of ius et iustitia, would actually work — and indeed has actually worked in history.
Rafael de Arízaga
- Cornelio Fabro, «I diritti dell’uomo nella tradizione ebraico-cristiana», Studi Cattolici, 66 (September 1966) pp. 11-12 (emphasis added).
- We should not be surprised, like Proudhon, that «at the basis of our politics [and our law] we always find theology». As Donoso Cortés famously quipped in response, «there is nothing here to cause surprise, except the surprise of M. Proudhon». All human conflict is ultimately theological.
- The truth, of course, is that it is the modern, positivistic legal systems that can be most justly called false, fanciful, mystagogic. What else can be said of the contention that the contradictory pronouncements of men across time can somehow give rise to anything that might rightfully claim the name of «justice»? It is written that «by their fruits you shall know them». Three and a half centuries of unheard-of bloodshed, upheaval, war, depravity, cacophony, and misery are not the fruits of a well-functioning legal order. As Ángel López-Amo might have put it, the most damning censure of the liberal, post-revolutionary bourgeoisie as a class is that in 250 years of almost exclusive rule it has everywhere been incapable of creating stable political forms. Cf. his Burguesía y estilo burgués, Publicaciones del Estudio General de Navarra, Pamplona, 1956, p. 12.
- Vid. Álvaro d’Ors, Parerga histórica, Ediciones Universidad de Navarra, Pamplona, 1997.
- To put it in classical terms, as described by Grenier in his manual, the «operables» (i.e., the objects of human action) with which, like any other practical science, the History of Law is concerned are the legal enactments, principles, arguments, and decisions of the past, and its study of these things is guided by the methods of historical science. They are thus its material object. These same operables, when considered as directed to the end of the science of Jurisprudence (which supplies that end to the discipline of the History of Law), are this discipline’s formal object quod. And that very end of Jurisprudence to which they are ordained (the just decision or action), is its formal object quo. Cf.Thomistic Philosophy, v. I, Part II, Book III, Ch. II, Art. II (§ 184, 4º).
